4 -CUP19-01; ME19-01_4405 W EDINGER

Home Browse Search

codes, ordinances requiring use of municipal sewer connections, laws regarding property taxes, most landlord-tenant laws, laws governing trespass, and others. 7. Does RLUIPA apply to local governments using eminent domain to take property owned by religious institutions? “Eminent domain” refers to government taking of private property for public use with just compensation. As a general matter, it is not a zoning or landmarking law, and thus RLUIPA will not apply. However, where municipalities have tried to use eminent domain to short-circuit the zoning process for places of worship that have applied for zoning approval, courts have found that such actions may be covered by RLUIPA. 8. Can places of worship still be landmarked? Yes, places of worship can be landmarked. However, like any other land-use regulation, landmarking designations that impose a substantial burden on religious exercise must be justified by compelling government interests and pursued in the least restrictive means. Also, landmarking regulations must not be applied discriminatorily. 9. What kinds of burdens on religious exercise are “substantial burdens” under RLUIPA? The substantial burden inquiry is fact-intensive, and looks at the degree to which a zoning or landmarking restriction is likely to impair the ability of a person or group to engage in the religious exercise in question. Whether a particular restriction or set of restrictions will be a substantial burden on a complainant’s religious exercise will vary based on context, such as the size and resources of the burdened party, the actual religious needs of an individual or religious congregation, the level of current or imminent space constraints, whether alternative properties are reasonably available, the history of a complainant’s efforts to locate within a community, the absence of good faith by the zoning authorities, and many other factors. Generally, when a municipality takes one of the following types of actions, it may constitute a substantial burden on religious exercise under RLUIPA: • effectively barring the use of a particular property for religious activity; • imposing a significantly great restriction on religious use of a property; or • creating significant delay, uncertainty, or expense in constructing or expanding a place of worship, religious school, or other religious facility. Courts have, for example, found substantial burdens on religious exercise in a denial of a church construction permit due to onerous off-street parking requirements imposed by a city, a permit condition requiring a religious retreat center to operate as a bed-and-breakfast, a denial of construction of a parish center, a denial of expansion plans for a religious school, and a denial of the ability to convert a building’s storage space to religious use. 4-75